CONVERSION AGENT & INFORMATION AGENT AGREEMENT
Exhibit 99.5
CONVERSION
AGENT & INFORMATION AGENT AGREEMENT
Date:
January , 2007
Global Bondholder Services Corporation
00 Xxxxxxxx — Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Eng
Ladies and Gentlemen:
Titan International, Inc., an Illinois corporation (the
“Company”), is offering to convert any and all
of its outstanding 5.25% senior convertible notes due 2009
(the “Notes”) to shares of its common stock, no
par value (“Common Stock”), at a conversion
rate of 81 shares of Common Stock per $1,000 principal
amount of Notes, less any fractional shares, subject to
adjustment in accordance with the terms of the Notes, upon the
terms and conditions set forth in its Conversion Offer
Prospectus,
dated ,
and any Prospectus supplements thereto (the “Conversion
Offer”), and in the related Letter of Transmittal,
copies of which are attached hereto as Exhibits A and B,
respectively, and which together, as they may be amended from
time to time, constitute the “Offer.” The
“Expiration Date” shall be 5 p.m. New York
City time, on February , 2007, as may be
extended by the Company from time to time. Capitalized terms
used herein but not otherwise defined herein shall have the
meaning provided in the Offer. If there is any conflict between
capitalized terms defined in this Agreement and the Offer, such
terms shall have the meaning provided in the Offer.
The Company hereby appoints Global Bondholder Services
Corporation to act as conversion agent (the “Conversion
Agent”) and information agent (the “Information
Agent”) in connection with the Offer. References
hereinafter to “you” or “your” shall refer
to Global Bondholder Services Corporation.
1) Conversion of Notes. In
your capacity as Conversion Agent, you will receive tenders of
Notes and revocations of tenders of Notes. Subject to the terms
and conditions of this Agreement, you are authorized to accept
such tenders of Notes and revocations of tenders of Notes in
accordance with the terms of the Offer, and to act in accordance
with the following instructions:
(a) Tenders of Notes may be made only as set forth in the
section of the Conversion Offer Prospectus entitled “The
Conversion Offer” and as set forth in Letter of
Transmittal. Notes shall be considered validly tendered only if:
(i) you receive a Confirmation relating to such Notes prior
to the Expiration Date; and
(ii) the Company has determined that the items received are
adequate pursuant to Section 2 of this Agreement.
(b) For the purpose of this
Agreement: (i) a “Confirmation”
means (A) an Agent’s Message confirming the book-entry
transfer of Notes into a designated account at The Depository
Trust Company (the “Book Entry Transfer
Facility”), or (B) the delivery of Notes in
certificate form and either an Agent’s Message or a
properly completed and duly executed Letter of Transmittal (or
facsimile thereof) relating thereto; (ii) an
“Agent’s Message” means a message
(including a printout generated by a computer terminal)
transmitted by electronic means by the Book Entry Transfer
Facility, in accordance with the normal procedures of the Book
Entry Transfer Facility and the Conversion Agent, to and
received by the Conversion Agent, which states that the Book
Entry Transfer Facility has received an express and
unconditional acknowledgment from a participant in the Book
Entry Transfer Facility tendering Notes and agreeing to be bound
by the terms of the Offer; and (iii) an “Eligible
Institution” means a firm that is a member in good
standing of a recognized medallion program approved by the
Securities Transfer Association, Inc., or is otherwise an
“eligible guarantor institution” as that term is
defined in
Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
(c) In connection with the Offer, you are expressly
authorized to enter into agreements or arrangements with the
Book Entry Transfer Facility or any other party which, among
other things, provide that (i) delivery of a Confirmation
will satisfy the terms of the Offer in accordance with the terms
of the Offer, (ii) such agreements or arrangements are
enforceable against the Company by the Book Entry Transfer
Facility, such other party, or any other participant in the
Offer, and (iii) you, as Conversion Agent and Information
Agent, are authorized to make any necessary representations or
warranties thereunder.
2) Procedure for Defective
Items. (a) You will examine each
Confirmation received by you to determine whether you believe
such tender may be defective. In the event you have reason to
believe of the existence of a defect in connection with a
tender of Notes or a revocation of tender of Notes, you are
authorized to notify the person tendering or withdrawing such
Notes, its nominee, the Book Entry Transfer Facility, or, if
applicable, the Eligible Institution, of the existence of such
defect.
(b) The Company shall retain responsibility for final
determinations whether any tender or revocation of tender is
complete and proper. In the event the Company determines that
any tender or revocation of tender is defective, you shall
notify the person tendering or withdrawing such Notes, its
nominee, the Book Entry Transfer Facility, or, if applicable,
the Eligible Institution, of such determination.
3) Amendment/Extension/Termination of
Offer. The Company shall promptly provide
you written notice of any amendment, extension (including
extension of the Expiration Date and any other deadlines), or
termination of the Offer.
4) Report of Tender
Activity. At or prior to
10:00 a.m. New York City time, or as promptly as
practicable thereafter, on each business day, you shall notify
each of the parties named below of (i) the number of Notes
duly tendered on the preceding business day; (ii) the
number of Notes withdrawn on such preceding business day; and
(iii) the cumulative totals of Notes in categories
(i) and (ii) above:
| (a) |
Xxxxx X. Xxxxxx Titan International, Inc. 0000 Xxxxxx Xxxxxx Xxxxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
| (b) |
Xxxxxxx Xxxxx & Co. World Financial Center Xxxxx Xxxxx Xxx Xxxx, XX 00000 Attn: Liability Management Group Phone: (000) 000-0000 Fax: (000) 000-0000 |
You shall furnish to the Company and the Dealer Manager(s)
information regarding the tendering holders of Notes, to the
extent such information has been furnished to you, as requested
from time to time.
5) Distribution of
Entitlements. If, under the terms and
conditions set forth in the Offer, the Company becomes obligated
to accept and pay the conversion consideration for Notes
tendered, the Company shall deposit with the Book Entry Transfer
Facility shares of its Common Stock and federal or other
immediately available funds in an amount equal to the aggregate
conversion consideration for all Notes tendered through the Book
Entry Transfer Facility, in accordance with the terms of the
Offer and the notice provided by you to the Company, specifying
the amounts, settlement date and time, and other instructions
for such distributions, in the following account:
Chase Manhattan Bank
Four Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
A/C Depositary Trust Company
Reorg Deposit Account #066-027608
ABA #000000000
Four Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
A/C Depositary Trust Company
Reorg Deposit Account #066-027608
ABA #000000000
If Notes are tendered in the form of physical certificates to
you, the Company shall deposit with you shares of its Common
Stock and federal or other immediately available funds in an
amount equal to the aggregate purchase price of all Notes
tendered in physical form, in accordance with the terms of the
Offer and the notice provided by you, in an account designated
by you.
6) Information Agent. In your
capacity as Information Agent you shall arrange and
coordinate:
(a) Printing activities, if requested;
(b) Estimates of the number of offering materials required;
(c) Distribution of offering materials to the beneficial
owners of Notes or the brokers, dealers, custodian banks and
other nominees;
(d) A dedicated toll-free line for all Note holder
queries; and
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(e) Reimbursement of brokers, dealers and custodian banks
for mailing costs associated with distribution of offering
materials, subject to collection from the Company of monies for
this purpose.
7) Instructions and Lists of
Note Holders. (a) You are
authorized to act upon the oral and written instructions of the
Company, the Dealer Manager(s), and their respective agents and
advisors. Any instructions given to you orally shall be
confirmed in writing, via email or facsimile, as soon as
practicable. You shall not be liable or responsible, and shall
be fully authorized and protected, for acting or failing to act
upon any instructions that conflict with a written confirmation
or that conflict with prior or subsequent instructions. In the
event you become aware of such a conflict, you will use
reasonable efforts to seek clarification of such instructions.
(b) In order to carry out your duties under this Agreement,
the Company will provide to you, or cause to be provided to you,
copies of the lists of holders of the Notes as of the record
date of the Offer, showing the names and addresses of, and the
principal amount of Notes held by, such holders as reflected on
the books and records of the Company, the trustee(s) of the
Notes, and the Book Entry Transfer Facility. These lists will
specifically identify any holders who hold Notes in the form of
physical certificates. You shall be fully authorized and
protected for acting upon these lists; you shall not be liable
or responsible for any inaccuracies or conflicts within or among
these lists, nor obligated to verify the accuracy of, or resolve
conflicts among, these lists. In the event you become aware of
any such inaccuracy or conflict, you will use reasonable efforts
to seek clarification from the Company.
8) Fees. Whether or not any
Notes are tendered or the Offer is consummated, for your
services hereunder we shall pay to you compensation in
accordance with the fee schedule attached hereto, together with
reimbursement for
out-of-pocket
expenses, including reasonable fees and disbursements of your
counsel.
9) Authorizations and
Protections. You:
(a) shall have no duties or obligations other than those
specifically set forth herein, or as you and the Company may
subsequently agree to in writing;
(b) shall have no obligation to make payment for any
tendered Notes unless (i) Notes are tendered to you in
physical form accompanied by all completed documentation deemed
necessary or desirable by you (including any tax forms), or
through the Book Entry Transfer Facility in accordance with the
terms of the Offer, and (ii) the Company shall have
provided the necessary shares of Common Stock and federal or
other immediately available funds to pay the full amount of
conversion consideration due and payable with respect thereto;
(c) shall be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value, or genuineness of the Notes, the Common Stock, or the
Offer;
(d) shall not be called upon at any time to advise any
person considering tendering Notes or revoking a tender of Notes
pursuant to the Offer as to the wisdom of making such tender or
revocation;
(e) may rely on and shall be authorized and protected in
acting or failing to act upon any certificate, instrument,
opinion, notice, letter, telegram, telex, facsimile
transmission, email, electronic transmission, Confirmation, or
other document delivered to you and believed by you to be
genuine and to have been signed or transmitted by the proper
party or parties;
(f) may consult counsel satisfactory to you, and the advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered, or omitted
by you hereunder in good faith and in accordance with the advice
of such counsel;
(g) shall not be liable or responsible for any statement
contained in the Offer or any other statements or documents
relating thereto;
(h) shall not be liable or responsible for any
determination or obligation of the Company or of any other
person with respect to compliance with any applicable law,
regulation, or rule, including applicable securities and tax
laws, regulations, and rules, and shall not be obligated to take
any legal action in connection with the Offer;
(i) shall not be liable or responsible for the failure of
the Book Entry Transfer Facility, any Eligible Institution or
any other party to comply with the terms of the Offer;
(j) shall have no obligation to pay any brokers, dealers,
or soliciting fees to any person; and
(k) shall not be liable or responsible for any delay,
failure, malfunction, interruption or error in the transmission
or receipt of communications or messages through electronic
means to or from the Book Entry Transfer Facility, any Eligible
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Institution, any broker, dealer, custodian bank, or any other
participant in the Offer, or for the actions or omissions of any
person in connection with any such message or communication.
10) Indemnification.
(a) The Company agrees to release, indemnify, hold
harmless, and defend you, your agents, employees and owners
(each an “Indemnified Person”) against any and
all claims, demands, actions, losses, liability, judgments,
fines, penalties, expenses, and attorney’s fees (each a
“Loss”) arising out of, claimed on account of,
or in any manner predicated upon, the Offer or the actions or
duties of an Indemnified Person under this Agreement (including
actions or duties that are mandatory or discretionary), unless a
court of competent jurisdiction renders a final determination
that such Loss was the result of the gross negligence or
intentional misconduct of an Indemnified Person; provided,
however, that under no circumstances shall an Indemnified Person
be deemed to have acted with gross negligence or intentional
misconduct when acting upon the instructions of the Company, the
Dealer Manager(s), or any of their agents, or their respective
attorneys (each a “Transaction Party”), or when
a Transaction Party substantially contributed to such Loss. In
no event shall an Indemnified Person be liable to any
Transaction Party or any third party for special, indirect,
punitive, incidental or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if
such Indemnified Person has been advised of the likelihood of
such damages and regardless of the form of action. The Company
shall advance all expenses incurred by an Indemnified Person in
connection with the investigation, defense, settlement or appeal
of any proceeding to which such Indemnified Person is a party or
is threatened to be made a party related to the Offer or its
actions or duties under this Agreement. Global Bondholder
Services Corporation hereby undertakes to promptly repay such
amounts advanced only if, and to the extent that, it shall
ultimately be determined by such court of competent jurisdiction
rendering a final determination that such Indemnified Person is
not entitled to be indemnified by the Company under the
provisions of this Agreement. Promptly after Global Bondholder
Services Corporation becomes aware of the commencement of any
such action, it shall, if a claim in respect thereof is to be
made against the Company, notify the Company in writing of the
commencement thereof.
(b) In the event any question or dispute arises with
respect to the proper interpretation of this Agreement, your
duties hereunder, or the rights or obligations of the Company,
any holder of Notes, or any other party in interest to the
Offer, you shall not be required to act and shall not be held
liable or responsible for your refusal to act until the question
or dispute has been judicially settled (and you may, if you in
your sole discretion deem it advisable, but shall not be
obligated to, file a suit in interpleader or for a declaratory
judgment for such purpose) by final judgment rendered by a court
of competent jurisdiction, binding on all Note holders and
parties interested in the matter, that is no longer subject to
review or appeal, or settled by a written document in form and
substance satisfactory to you and executed by the Company. In
addition, you may require for such purpose, but shall not be
obligated to require, the execution of such written settlement
by all of the Note holders and all other parties that may have
an interest in the settlement.
This Section shall survive termination of this Agreement.
11) Termination and
Resignation. Unless terminated earlier by
the parties hereto, this Agreement shall terminate upon
(a) the Company’s termination or withdrawal of the
Offer, or (b) if the Company does not terminate or withdraw
the Offer, the date which is thirty (30) days after the
Expiration Date of the Offer. You may resign from your duties
under this Agreement upon 30 days written notice to the
Company.
12) Representations, Warranties and
Covenants. The Company represents,
warrants and covenants, as of the date hereof and the date of
the commencement of the Offer, that (a) it is duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, (b) the making
and consummation of the Offer and the execution, delivery and
performance of all transactions contemplated thereby have been
duly authorized by all necessary corporate action and will not
result in a breach of, or constitute a default under, the
certificate of incorporation or bylaws of the Company or any
indenture, agreement or instrument to which it is bound,
(c) this Agreement has been duly executed, authorized and
delivered by the Company and constitutes the legal, valid,
binding and enforceable obligation of it, (d) the Offer
complies, and will comply, in all material respects with all
applicable requirements of law and regulation, and (e) to
the best of its knowledge, there is no litigation pending or
threatened in connection with the Offer.
13) Notices. All notices,
requests and other communications required to be in writing will
be delivered to the address or transmitted to the facsimile
indicated on the signature page hereof, or, if requested by a
party, transmitted to an email address specified by such party.
14) Records. You shall preserve
records and dispose of surplus materials in accordance with your
customary procedures.
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15) Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving
effect to conflict of laws rules or principles. Except for an
action filed pursuant to Section 10(b) of this Agreement,
which may be brought in any court of competent jurisdiction, any
action between the parties to this Agreement arising out of this
Agreement shall be litigated in courts located in New York City,
New York.
(b) No provision of this Agreement may be amended, modified
or waived, except in a writing signed by the parties hereto.
(c) In the event that any claim of inconsistency between
this Agreement and the terms of the Offer arise, as they may
from time to time be amended, the terms of the Offer shall
control, except with respect to the duties, liabilities and
rights, compensation and indemnification of you, which shall be
controlled by the terms of this Agreement.
(d) If any provision of this Agreement shall be held
illegal, invalid, or unenforceable by any court, this Agreement
shall be construed and enforced as if such provision had not
been contained herein and shall be deemed an Agreement between
us to the full extent permitted by applicable law.
(e) This Agreement may not be assigned by any party without
the prior written consent of the other party. This Agreement
shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns
of the parties hereto.
(f) You shall not be liable for any failure or delay
arising out of conditions beyond your reasonable control
including, but not limited to, work stoppages, fires, civil
disobedience, riots, rebellions, storms, electrical, mechanical,
computer or communications facilities failures, acts of God or
similar occurrences.
(g) This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same
agreement.
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Please acknowledge receipt of this Agreement, and confirm the
arrangements herein provided, by signing and returning the
enclosed copy hereof, whereupon this Agreement and your
acceptance of the terms and conditions herein provided shall
constitute a binding Agreement between us.
Very truly yours,
Titan International, Inc.
| By: |
| Name: Xxxx X. Xxxxxxxxx Title: |
Vice President of Finance and Treasurer |
Address for notices:
Titan International, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Accepted and agreed to
GLOBAL BONDHOLDER SERVICES CORPORATION
as CONVERSION AGENT & INFORMATION AGENT
| By: |
Name: Xxxxxx Eng
| Title: | Managing Director |
Address for notices:
00 Xxxxxxxx — Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
212-430-3775
or
000-000-0000
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